Tort
A tort, in jurisdictions, is a that causes a claimant to suffer loss or harm, resulting in for the person who commits the tortious act. It can include the intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy and many other things. Tort law, where the purpose of a legal is to obtain a private such as , may be compared to , which deals with that are punishable by the state. Tort law may also be contrasted with , which also provides a civil remedy after breach of duty; but whereas the contractual is one chosen by the parties, the obligation in both tort and crime is imposed by the state. In both contract and tort, successful claimants must show that loss or harm as a of the . , a person may enforce a contract even when they are not a party to it.}} .}} Civil wrong A civil wrong or wrong is a under the law of the governing body. , breach of contract and are types of civil wrong. Something that amounts to a civil wrong is said to be wrongful. A wrong involves the violation of a right because wrong and right are complementary terms. A statement that an act complained of is legally wrongful as regards the party complaining implicitly includes a statement that the act complained of prejudicially affects the party complaining in some . The law that relates to civil wrongs is part of the branch of the law that is called the . A civil wrong is capable of being followed by what are called s. It is a misnomer to describe a civil wrong as a " ". The law of England recognised the concept of a "wrong" before it recognised the distinction between civil wrongs and s (which distinction was developed during the thirteenth century). Terminology The person who commits the act is called a tortfeasor. Although s may be torts, the in civil torts is not necessarily the result of criminal action; the harm in civil torts may be due to , which does not amount to . The victim of the harm can recover their loss as in a . In order to prevail, the in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the of the harm. The equivalent of tort in is " ". Legal injuries are not limited to and may include emotional, economic, is rarely recoverable.}} or reputational injuries as well as violations of , property, or constitutional rights. Torts comprise such varied topics as , , , , , and environmental pollution ( ). Compared to criminal cases, tort lawsuits have a lower burden of proof, namely " ", rather than . Sometimes a claimant may prevail in a tort case even if the defendant who allegedly caused harm were acquitted in an earlier criminal trial. For example, was acquitted in criminal court of but later found liable for the tort of . Both tort law and criminal law may impose liability where there is: * * * * (without negligence) in the US & the EU * "innocence" (or blameless inadvertence) provided there is . History contained provisions for torts in the form of , which later influenced the in , but a distinctive body of law arose in the world traced to . The word 'tort' was first used in a legal context in the 1580s, "tort" (injury), which is derived from .}} although different words were used for similar concepts prior to this time. Medieval period Torts and crimes at common law originate in the system of compensatory for wrongs ( unriht), with no clear distinction between crimes and other wrongs. In , most wrongs required payment in money or in kind (bōt, literally 'remedy') to the wronged person or their clan. Wīte (literally 'blame, fault') was paid to the king or holder of a court for disturbances of public order. , which was a murder fine based on a victim's worth, was intended to prevent blood s. Some wrongs in later law codes were botleas 'without remedy' (e.g. theft, open murder, arson, treason against one's lord), that is, unable to be compensated, and those convicted of a botleas crime were at the king's mercy. Items or creatures which caused death were also destroyed as s. Assessing intention was a matter for the court, but 's did distinguish unintentional injuries from intentional ones, whereas culpability depended on status, age, and gender. After the , fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown. The petty assizes (i.e. , , and ) were established in 1166 as a remedy for interference with possession of freehold land. The action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. The plea arose in local courts for , , or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or . Later, after the , in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force. As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case. In 1401, the English case imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle. Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for , which arose around 1400, was also emphasized in the medieval period. Unintentional injuries were relatively infrequent in the medieval period. As transportation improved and carriages became popular in the 18th and , however, collisions and carelessness became more prominent in court records. In general, scholars of England such as took a hostile view to litigation, and rules against and existed. The restriction on of a cause of action is a related rule based on . English influence The right of victims to receive was regarded by later English scholars as one of the . Blackstone's , which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word tort in a few places. United States influence was influenced by English law and Blackstone's , with several state constitutions specifically providing for redress for torts in addition to s which adopted English law. However, tort law was viewed as relatively undeveloped by the mid-19th century; the first American treatise on torts was published in the 1860s but the subject became particularly established when wrote on the subject in the 1880s. Holmes' writings have been described as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain", although Holmes' summary of the history of torts has been critically reviewed. The 1928 US case of heavily influenced the British judges in the 1932 case of . Modern development The law of torts for various jurisdictions has developed independently. In the case of the United States, a survey of trial lawyers pointed to several modern developments, including strict liability for products based on Greenman v. Yuba Power Products, the limitation of various immunities (e.g. , ), , broader rules for admitting evidence, increased damages for , and s and lawsuits. However, there has also been a reaction in terms of , which in some cases have been struck down as violating state constitutions, and federal preemption of state laws. Modern torts are heavily affected by and , as most cases are settled through rather than by trial, and are defended by insurance lawyers, with the , a limit, setting a ceiling on the possible payment. Comparative law In the of modern tort law, common law jurisdictions based upon have foundational differences from civil law jurisdiction, which may be based on the Roman concept of . Even among common law countries, however, significant differences exist. For example, in England legal fees of the winner are paid by the loser (the versus the of attorney fees). Common law systems include , , , , and . The Jewish law of is another example although tort in is technically similar to English law as it was enacted by authorities in 1944 and took effect in 1947. There is more apparent split between the countries (principally England, Canada and Australia) and the United States. The United States has been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticized and debated. As of 1987, class actions were relatively uncommon outside of the United States. As of 1987, English law was less generous to the plaintiff in the following ways: arrangements were restricted, English judges tried more decisions and set rather than juries, wrongful death lawsuits were relatively restricted, punitive damages were relatively unavailable, the was restricted, and strict liability, such as for product liability, was relatively unavailable. England's welfare state, such as free healthcare through , may limit lawsuits. On the other hand, as of 1987 England had no workers compensation system and lawsuits due to workplace injuries were relatively common and facilitated by s, whereas in the United States the system of workers' compensation insurance prohibits lawsuits against the employer although lawsuits against third parties such as manufacturers does occur. The United States also has faced a rise in for automobile liability in several states. In England, may also take cases which could alternatively become tort lawsuits. When comparing Australia and the United States, Australia's tort law is similarly ; however, there is a federal common law for torts unlike the United States. The influence of the United States on Australia has been limited. The United States may have influenced Australia's development of strict liability for products indirectly through legislation affected by , and in the 1990s class actions were introduced in Australia. Australia has and 'welfare state' systems which also limit lawsuits. In New Zealand, a no-fault accident compensation system has limited the development of personal injury torts. Conflict of laws In certain instances, different jurisdictions' law may apply to a tort, in which case rules have developed for which law to apply. This occurs particularly in the United States, where each of the 50 states may have different s, but also may occur in other countries with a federal system of states, or internationally. Categories Torts may be categorized in several ways, with a particularly common division between negligent and intentional torts. s may be used to refer to torts which are similar to but somewhat different from typical torts. Particularly in the United States, "collateral tort" is used to refer to torts in such as ("outrage"); or ; these evolving are debated and overlap with or other legal areas to some degree. The most common action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests or noneconomic interests such as the tort of in the United States. Negligence actions include claims coming primarily from car accidents and accidents of many kinds, including clinical negligence, worker's negligence and so forth. cases, such as those involving warranties, may also be considered negligence actions or, particularly in the United States, may apply regardless of negligence or intention through . Intentional torts include, among others, certain torts arising from the occupation or use of land. The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another's enjoyment of his real property. Trespass allows owners to sue for entrances by a person (or his structure, such as an overhanging building) on their land. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining someone, and defamation (in some jurisdictions split into and ), where false information is broadcast and damages the plaintiff's reputation. Other intentional torts include Battery, Assault, Trespass to Chattels, Intentional Infliction of Emotional Distress, Misrepresentation, and Alienation of Affections. In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside the traditional common law torts. These are loosely grouped into quasi-torts or liability torts. Negligence Negligence is a tort which arises from the breach of the owed by one person to another from the perspective of a . Although credited as appearing in the United States in , the later Scottish case of 1932 AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions. In Donoghue, Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence. The elements in determining the liability for negligence are: * The plaintiff was owed a duty of care through a special relationship (e.g. doctor-patient) or some other principle * There was a dereliction or breach of that duty * The tortfeasor directly caused the injury for the defendant's actions, the plaintiff would not have suffered an injury. * The plaintiff suffered damage as a result of that breach * The damage was not too remote; there was to show the breach caused the damage In certain cases, negligence can be assumed under the doctrine of (Latin for "the thing itself speaks"); particularly in the United States, a related concept is . For example, in the business realm, the auditor has a duty of care to the company they are auditing - that the documents created are a true and reliable representation of the company's financial position. However, as per , such auditors do NOT provide a duty of care to third parties who rely on their reports. An exception is where the auditor provides the third party with a privity letter, explicitly stating the third party can rely on the report for a specific purpose. In such cases, the privity letter establishes a duty of care. The case added to the precedent of negligence where in previous cases reasonable foreseeability was applied narrowly to include all predictable actions, Chapman v Hearse extended this to include all damages of the same nature which could be reasonably foreseen. Proximate cause Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for. The defense may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. For example, someone who has a bad back is injured in the back in a car accident. Years later he is still in pain. He must prove the pain is caused by the car accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if after the accident the doctor who works on you commits malpractice and injures you further, the defense can argue that it was not the accident, but the incompetent doctor who caused your injury. https://web.archive.org/web/20120615233606/http://www.jud.ct.gov/ji/Civil/part3/3.1-8.htm Intentional torts Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories: *Torts against the person include , , , , and , although the latter is also an . *Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognized include trespass to land, trespass to chattels (personal property), and conversion. An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement. Causation can be satisfied as long as the defendant was a substantial factor in causing the harm. Statutory torts A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the legislature, not the courts. For example, the European Union's Product Liability Directive imposes strict liability for defective products that harm people; such strict liability is not uncommon although not necessarily statutory. As another example, in England common law liability of a landowner to guests or trespassers was replaced by the ; a similar situation occurred in the U.S. State of California in which a judicial common law rule established in was amended through a 1985 statute. Statutory torts also spread across workplace health and safety laws and health and safety in food. In some cases federal or state statutes may preempt tort actions, which is particularly discussed in terms of the U.S. ; although actions in the United States for medical devices are preempted due to (2008), actions for medical drugs are not due to (2009). Nuisance "Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet. The case Jones v Powell (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear, Whitelocke of the is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor". In English law, a related category of tort liability was created in the case of (1868): strict liability was established for a dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs. The Rylands rule remains in use in England and Wales. In Australian law, it has been merged into negligence. Defamation Defamation is tarnishing the reputation of someone; it has two varieties, slander and libel. Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the same features: making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the First Amendment to the Constitution of the United States, or Article 10 of the European Convention of Human Rights. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well. Business torts Business torts (i.e., economic torts) typically involve commercial transactions, and include with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there is no of contract; these torts are likely to involve which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine. The economic loss rule is highly confusing and inconsistently applied and began in 1965 from a California case involving strict liability for product defects; in 1986, the U.S. Supreme Court adopted the doctrine in East River S.S. Corp. v. Transamerica Deleval, Inc. In 2010, the replaced the economic loss doctrine with an "independent duty doctrine". Economic antitrust torts have been somewhat submerged by modern . However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on the basis of common law , which may be based upon the §766. Federal laws include the of 1890 followed by the which restrict s and through regulate . In the European Union, articles 101 and 102 of the Treaty on the Functioning of the European Union apply but allowing private actions to enforce antitrust laws is under discussion. Negligent misrepresentation as tort where no contractual exists was disallowed in England by 1889; however, this position was overturned in in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant. United States courts and scholars "paid lip-service" to Derry; however, scholars such as argued that it was misinterpreted by English courts. The case of (1932) limited the liability of an to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s. The expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as s, s, s, and . As of 1989, most U.S. jurisdictions follow either the Ultramares approach or the Restatement approach. The for inducement into a contract is a tort in English law, but in practice has been replaced by actions under . In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule. Historically (and to some degree today), fraudulent (but not negligent) misrepresentation involving damages for economic loss may be awarded under the "benefit-of-the-bargain" rule (damages identical to in contracts) which awards the plaintiff the difference between the value represented and the actual value. Beginning with Stiles v. White (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule. Although the damages under the "benefit-of-the-bargain" are described as compensatory, the plaintiff is left better off than before the transaction. Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract. Liability, defenses, and remedies may arise due to some involvement, notably through doctrines as well as forms of . Liability may arise through . Other concepts include . Vicarious liability In certain cases, a person might be liable for their employee or child under the through the doctrine of . For example, if a shop employee spilled cleaning liquid on the supermarket floor and a victim fell and suffered injuries, the plaintiff might be able to sue either the employee or the employer. There is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation. Defenses A successful defense absolves the defendant from full or partial liability for damages. Apart from proof that there was no breach of duty, there are three principal defenses to tortious liability. Consent and warning Typically, a victim cannot hold another liable if the victim has implicitly or explicitly consented to engage in a risky activity. This is frequently summarized by the maxim " " (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents"). In many cases, those engaging in risky activities will be asked to sign a releasing another party from liability. For example, spectators to certain sports are assumed to accept a risk of injury, such as a hockey puck or baseball striking a member of the audience. Warnings by the defendant may also provide a defense depending upon the jurisdiction and circumstances. This issue arises, for example, in the that landowners have for guests or trespasses, known as occupiers' liability. Comparative or contributory negligence If the victim has contributed to causing their own harm through negligent or irresponsible actions, the damages may be reduced or eliminated entirely. The English case (1809) established this defense. In England, this " " became a partial defense, but in the United States, any fault by the victim completely eliminated any damages. This meant that if the plaintiff was 1% at fault, the victim would lose the entire lawsuit. This was viewed as unnecessarily harsh and therefore amended to a system in many states; as of 2007 contributory negligence exists in only a few states such as North Carolina and Maryland. In comparative negligence, the victim's damages are reduced according to the degree of fault. Comparative negligence has been criticized as allowing a plaintiff who is recklessly 95% negligent to recover 5% of the damages from the defendant. Economists have further criticized comparative negligence as not encouraging precaution under the . In response, many states now have a 50% rule where the plaintiff recovers nothing if the plaintiff is more than 50% responsible. Illegality If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. The legal maxim , Latin for "no right of action arises from a despicable cause". Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained but for the property owner's intervention. Other defenses and immunities Historically, immunity has been granted to governments under and to charitable organizations under , although these have eroded in the United States. Various laws limit liability when giving aid to a person in need; liability can arise from a failure to help due to the . Remedies The main remedy against tortious loss is compensation in or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defense against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an , such as in the English case (1977). This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. Usually injunctions will not impose positive obligations on tortfeasors, but some jurisdictions can make an order for to ensure that the carries out their legal obligations, especially in relation to nuisance matters. Theory and reform Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: , , and . British scholar notes four possible bases on which different torts rested: appeasement, justice, deterrence and compensation. From the late 1950s a group of legally oriented economists and economically oriented lawyers known as scholars emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of . , a principal proponent, argued in (1960) that the aim of tort law, when s are high, should be to reflect as closely as possible the allocation of risk and liability at which private parties arrive when transaction costs are low. Since the mid-to-late 20th century, calls for reform of tort law have come from various perspectives. Some calls for reform stress the difficulties encountered by potential claimants. For example, because not all people who have accidents can find solvent defendants from which to recover damages in the courts, has called the situation a "damages lottery". Consequently, in , the government in the 1960s established a of state compensation for . Similar proposals have been the subject of s in the UK and much academic debate. In the U.S., reform has typically limited the scope of tort law and damages available, such as limiting , the , or capping noneconomic damages for or . These reform statutes are sometimes rejected as unconstitutional under the by s, with the possibly also relevant. Theoretical and policy considerations are central to fixing liability for and of public bodies. Relationship to contract law Tort is sometimes viewed as the causes of action which are not defined in other areas such as or law. However, tort and contract law are similar in that both involve a breach of duties, and in modern law these duties have blurred and it may not be clear whether an action " in tort or contract"; if both apply and different standards apply for each (such as a ), courts will determine which is the " " (the most applicable). Circumstances such as those involving professional negligence may involve both torts and contracts. The choice may affect time limits or damages, particularly given that damages are typically relatively limited in contract cases while in tort cases noneconomic such as may be awarded. s are relatively uncommon in contractual cases versus tort cases. However, compensation for defective but not unsafe products is typically available only through contractual actions through the law of . In the United Kingdom, plaintiffs in professional negligence cases have some degree of choice in which law while in commercial transactions contract law applies; in unusual cases, intangible losses have been awarded in contract law cases. The English case (1854), which was adopted in the United States, split contract and tort damages by foreseeability of the damages when the contract was made. In the United States, the rule was adopted to further prevent negligence lawsuits in breach of contract cases. This "economic loss rule" was adopted by the East River Steamship Corp V Transamerica Delaval Inc. (1986) and expanded across the country in a non-uniform manner, leading to confusion. Among other examples, the tort of arises out of a contractual relationship, and "collateral torts" such as involving possible overlap with contracts. Overlap with criminal law There is some overlap between criminal law and tort. For example, in an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of to a person injured in a car accident, or the obtaining of to stop a person interfering with their business). Criminal actions on the other hand are pursued not to obtain remedies to assist a person although often criminal courts do have power to grant such remedies but to remove their liberty on the state's behalf. This explains why is usually available as a penalty for serious crimes, but not usually for torts. In early common law, the distinction between crime and tort was not distinct. The more severe penalties available in criminal law also means that it requires a higher to be discharged than the related tort. For example, in the , the jury was not convinced beyond reasonable doubt that had committed the crime of ; but in a later civil trial, the jury in that case decided that there was sufficient evidence to meet the standard of required to prove the tort of . Many jurisdictions, especially the US, retain elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with criminal acts. Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public element for example, and sometimes actions in tort will be brought by a public body. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim. Law and economics William M. Landes, Richard A. Posner, and Steven Shavell have initiated a line of research in the literature that is focused on identifying the effects of tort law on people's behavior. These studies often make use of concepts that were developed in the field of . Notes References Category:Civilization